The Upside-Down Treatment of Religious Exceptions Cases in the Supreme Court

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week to reject an emergency application from the State of Alabama to lift a stay on the execution of Willie B. Smith III. Professor Dorf observes the Court’s unusual alignment of votes in the decision and argues that, particularly as reflected by the recent COVID-19 decisions, the liberal and conservative Justices have essentially swapped places from the seminal 1990 case Employment Division v. Smith, which established that the First Amendment does not guarantee a right to exceptions from neutral laws of general applicability.

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Du Bois v. The Board of Regents of the University of Minnesota

Docket: 20-1544

Opinion Date: February 16, 2021

Judge: Kobes

Areas of Law: Civil Rights, Constitutional Law, Education Law

Plaintiff filed suit against the Board of Regents of the University of Minnesota alleging retaliation and sex discrimination under Title IX. Specifically, plaintiff alleged that the University violated Title IX by (1) retaliating against her for supporting a former coach in a sexual harassment investigation by not allowing her to redshirt; and (2) discriminating against her on the basis of sex. The Eighth Circuit affirmed the University's motion to dismiss because plaintiff did not have an actionable claim for retaliation under Title IX and she failed to show that she was treated differently because of her sex. In this case, plaintiff failed to allege that she engaged in a protected activity, and no part of Title IX designates participation in a sexual harassment investigation on the side of the accused as protected activity. In regard to plaintiff's claim that she was discriminated against on the basis of her sex when she was denied the right to redshirt, the court concluded that plaintiff failed to plead sufficient facts to support a claim of sex discrimination in violation of Title IX.

SD VOICE v. Noem

Dockets: 20-1262, 20-1278

Opinion Date: February 16, 2021

Judge: Raymond W. Gruender

Areas of Law: Civil Rights, Constitutional Law, Election Law

The Eighth Circuit dismissed defendants' appeal of the district court's decision permanently enjoining as unconstitutional a South Dakota law regulating ballot-petition circulation, as well as plaintiffs' cross-appeal of the district court's failure to decide all of their claims. While defendants' appeal was pending, the South Dakota Legislature enacted SB 180, which substantially changed the ballot-petition process, replacing HB 1094. Therefore, defendants' appeal is moot and the court lacked jurisdiction. The court also concluded, based on considerations of public interest, that defendants failed to show their entitlement to vacatur and the court declined to vacate the district court's judgment. In regard to plaintiffs' cross-appeal, the court concluded that the district court has not yet decided all of plaintiffs' claims and thus the court lacked jurisdiction over the cross-appeal based on the lack of a final order.

Kempf v. Hennepin County

Docket: 20-1308

Opinion Date: February 16, 2021

Judge: Erickson

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Plaintiff appealed the district court's adverse grant of summary judgment on her claims against the County, her former employer, alleging that it retaliated against her for participating in protected activity in violation of Title VII and the Minnesota Whistleblower Act (MWA). The Eighth Circuit affirmed the district court's dismissal of the Title VII suspension-based claim, concluding that plaintiff failed to establish a prima facie case of retaliation. In this case, plaintiff failed to show that she engaged in statutorily protected activity because she did not communicate or report any sexual harassment before her suspension. In regard to the termination-based claim, the court applied the burden-shifting McDonnell Douglas framework and concluded that, assuming plaintiff made a prima facie case, the County articulated several legitimate, non-retaliatory reasons for her discharge. Furthermore, plaintiff has not shown that the County's reasons are sufficiently intertwined or fishy that rebutting only some of the reasons discredits them all. Therefore, the court affirmed the district court's dismissal of the termination-based claim under Title VII. However, given the relatively novel questions of state law, the court dismissed the MWA claims without prejudice so that they can be taken up by the Minnesota state courts.

Luer v. Clinton

Docket: 18-3512

Opinion Date: February 16, 2021

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law

Plaintiff and his wife filed suit against two police officers after plaintiff found the officers, guns drawn, searching their home without a warrant at 3:00 a.m. The district court denied the officers qualified immunity and granted plaintiff and his wife partial summary judgment on their claims that the officers unlawfully entered and searched their home and its curtilage, concluding that the circumstances were insufficient to create an exception to the Fourth Amendment's warrant requirement. The Eighth Circuit affirmed in part and reversed in part, concluding that the officers are entitled to qualified immunity for some but not all their actions on the night in question. The court concluded that the officers are entitled to qualified immunity for their entry into plaintiffs' curtilage under the community caretaker function. In this case, the officers had reason to believe that an intoxicated thief was in the vicinity, and an open garage door was a likely place where he could enter and perhaps damage property. Furthermore, the officers are entitled to qualified immunity under the community caretaker exception because an open door into a home late at night, when no one had responded to their repeated knocking at the outside doors, arguably warranted a limited protective entry. However, the community caretaker exception cannot justify the severe, warrantless intrusion into the home in this case where the officers observed no signs of criminal activity; the officers were responding to a call from a cab driver reporting that a petty thief had run, not that a burglar was on the prowl, and reasonable officers acting as community caretakers should have left the home. The court explained that it was clearly established by controlling Fourth Amendment precedents that the officers' full blown search of the entire home without a warrant was objectively unreasonable. The court remanded for further proceedings.

Sarasota Wine Market, LLC v. Schmitt

Docket: 19-1948

Opinion Date: February 16, 2021

Judge: James B. Loken

Areas of Law: Constitutional Law, Government & Administrative Law

Sarasota filed suit against the Officials, seeking prospective relief, alleging that Missouri's liquor control laws, by preventing out-of-state retailers from shipping directly to Missouri consumers, discriminate against interstate commerce and citizens of other States in violation of the dormant Commerce Clause and the Privileges and Immunities Clause. The Eighth Circuit affirmed the district court's dismissal of Sarasota's amended complaint. The court concluded that, although plaintiffs have standing to challenge the Missouri Liquor Control Act, the district court did not err in dismissing the action for failure to state viable claims under the dormant Commerce Clause and the Privileges and Immunities Clause. The court agreed with the Sixth Circuit that the Supreme Court in Granholm v. Heald, 544 U.S. 460, 476-86 (2005), and Tenn. Wine & Spirits Retailers Ass'n v. Thomas, 139 S. Ct. 2449, 2462-70 (2019), did not decide that essential elements of the three-tiered system are subject to frontal attack under the dormant Commerce Clause or the Privileges and Immunities Clause. The court explained that those seeking a more consumer-oriented organization of alcohol industries must turn to state-by-state political action on behalf of consumers who are hurt by these laws.

United States v. Ruzicka

Docket: 19-2122

Opinion Date: February 16, 2021

Judge: Raymond W. Gruender

Areas of Law: Criminal Law, White Collar Crime

The Eighth Circuit affirmed defendant's conviction and sentence for four counts of mail fraud, three counts of wire fraud, and one count of tax fraud. The court rejected defendant's numerous claims of Napue violations, concluding that the statements at issue were corrected and the allegedly false testimony was stricken from the record. In regard to the remaining Napue claims, the court concluded that the district court did not err in determining that the violations are harmless. The court also rejected defendant's Brady claim, concluding that the district court correctly determined that the government's failure to inform defendant of the reverse proffer did not constitute a Brady violation because the undisclosed evidence, even if favorable to defendant, was not material. The court also concluded that defendant failed to show that the district court committed clear error by concluding that the government did not violate the Jencks Act by failing to disclose an agent's report because the report included no statements made by government witnesses that related to the subject matter of their testimony. The court further concluded that the evidence was sufficient to support defendant's fraud convictions, and defendant is not entitled to a new trial based on the cumulative impact of alleged trial errors. Finally, the court concluded that defendant failed to show the existence of any legal error or clear factual error in the district court's fraud-loss calculation, and imposing an order of restitution equal to the amount of the loss was not erroneous.